Amol Mehra: Supreme Court undermines human rights

Thursday

Apr 25, 2013 at 5:27 PM

By AMOL MEHRA

Commentary staff

By AMOL MEHRA

The U.S. Supreme Court has ruled in Kiobel v. Royal Dutch Petroleum (Shell) that Esther Kiobel may not proceed in her case against Shell for aiding and abetting in the torture and murder of her husband, a physician and social activist in Nigeria. In addition to setting back Esther's quest for justice, the court's decision has two major effects: It limits accountability for gross human-rights abuses committed abroad and it gives foreign corporations preferential treatment over domestic businesses. Shell is based in The Hague, in The Netherlands.

In 1995, Barinem Kiobel and eight other people were kidnapped, tortured and executed by hanging following a trial before a military tribunal internationally denounced as a sham. Kiobel was a leader of a nonviolent organization that protested Shell's polluting of the land in the Ogoni region, in Nigeria. To quash the protest, Shell allegedly sent corporate officers to meet with the Nigerian government and provided funding and training to the Nigerian military for "security operations" that resulted in years of violent abuse, including harassment, beatings, rape, torture and death.

Kiobel's wife, Esther, fled to the U.S. and eventually brought her lawsuit against Shell under the ancient Alien Tort Statute (ATS), which was enacted by the first U.S. Congress. The ATS has been one of the foremost tools for lawyers representing foreign victims of torture, extrajudicial killing, genocide, crimes against humanity and war crimes. The act has let foreign citizens seek justice for rights abuses in U.S. federal courts. But the Supreme Court has limited this foundational principle. The court's decision in Kiobel v. Royal Dutch Petroleum (Shell) deeply damages victims of human-rights abuse and U.S. principles.

The decision leaves Esther Kiobel and plaintiffs like her with little recourse against some of the largest corporations. The judicial system in Nigeria is notoriously corrupt, making it virtually impossible for Esther Kiobel to receive anything approaching a fair hearing there. Shell is a major economic presence in the country, and maintains connections to government officials, particularly the military, which it coordinates with on "security" matters in the areas where it operates. This symbiotic relationship not only drove the abuses, it now effectively insulates the company from justice.

Unfortunately, Esther's is hardly an isolated case. Mutually beneficial arrangements between corrupt local officials and corporate officers hoping to benefit from lax environmental and labor protections foster a climate of impunity across the globe. The ATS lets such victims as Esther challenge abuses in a neutral forum.

Numerous existing rights cases against individuals, groups and corporations for abuses abroad are now in question. In its decision, the court failed to give clarity to when and under what circumstances the ATS does apply to human-rights abuses. More litigation will surely arise from this decision as rights advocates try to determine its limits.

The decision effectively gives preferential treatment to foreign corporations over domestic businesses in U.S. courts. The court ruled that Shell could not be sued in this case under the ATS because "mere corporate presence" in the U.S. is not enough. Now, such companies as Shell based elsewhere but doing business in the U.S. do not have to worry about being sued here by virtue of their activity within our borders.

With America's reputation as a human-rights leader now in doubt, the question on everyone's mind is how Congress will respond. In delivering its decision, the Supreme Court suggested that Congress can act to ensure that victims such as Esther have access to U.S. courts in cases like this one.

We expect that Congress will do so without delay.

Amol Mehra is director of the International Corporate Accountability Roundtable.